The U.S. Supreme Court’s recent decision in United States v. Windsor, striking the Defense of Marriage Act’s (“DOMA”) definition of marriage as unconstitutional, affects an employee’s entitlement to leave under the federal Family and Medical Leave Act (“FMLA”) — and employers in states that do not recognize same sex marriage still need to pay attention.

Under the FMLA, eligible employees of covered employers may take up to 12 weeks of leave per year to care for the serious health condition of a spouse or because of a qualifying exigency arising out of the spouse being a member of the Armed Forces, or up to 26 weeks of leave per year to care for a covered service member or veteran.  The FMLA regulations state that “spouse” means “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides.”  29 C.F.R. § 825.122(a).  In 1998, a U.S. Department of Labor Wage and Hour Division opinion letter clarified that DOMA, which defined “marriage” as only a legal union between a man and a woman, governed the definition of “spouse” under the FMLA.  This resulted in employees with legal same-sex spouses not being eligible to take FMLA leave to care for their spouse.

With DOMA’s definition of marriage having been struck down, however, a “spouse” under the FMLA now includes same-sex spouses in states where same sex marriage is recognized.  While Windsor did not address the DOMA provision providing that states are not required to recognize same sex marriages of other states, employers should be aware that certain interstate issues may arise.

Example 1:  Employer has an office in Vienna, Virginia, where over 50 employees work for Employer.  Virginia does not recognize same-sex marriage.  Employee A married a spouse of the same sex in the District of Columbia, where same-sex marriage is legal.  Employee A lives in the District of Columbia, and drives across the Potomac River every day to work for Employer in Vienna.  When Employee A’s spouse has a serious health condition, Employee A is eligible to take leave under the FMLA to take care of the spouse.

Tip for Employers:  When analyzing whether an employee is eligible for FMLA leave, be aware that employees with same sex spouses may be entitled to FMLA leave if the employee resides in a state that recognize such marriages.  This will impact employers located in New Jersey, Pennsylvania, Virginia, and other states that do not recognize same sex marriages but draw employees from neighboring states recognizing same sex marriages.

Example 2:  Employee A in Example 1 gets tired of the commute to Vienna, and decides to move to Virginia.  Since Employee A now resides in a state that does not recognize his marriage to his same sex spouse, Employee A is not entitled under the FMLA to take leave to care for his spouse’s serious health condition.

Tip for Employers:  Employers might consider whether to grant leave in this situation, as some already do, to ensure equal treatment of employees regarding leave to care for a spouse.  It will not, however, count toward the employee’s annual FMLA leave entitlement.  Thus, employers should be aware that the employee may be entitled to leave at a later point for a different FMLA qualifying event, so employers should consult with counsel regarding the potential implications of granting this type of leave.

Example 3:  Employee B works for Employer.  Employee B married a spouse of the same sex in Massachusetts, where same sex marriage is legal.  Employee B telecommutes, working out of his home, but receives his direction and assignments from Employer’s Virginia office.  When Employee B’s same sex spouse is called to active duty in the military, he may be eligible to take leave for certain qualifying exigencies under the FMLA.

Tip for Employers:  Employers should remember that telecommuting employees may also be entitled to FMLA leave, even though they work in locations away from the office.  The FMLA states that for telecommuting employees, “their worksite is the office to which they report and from which assignments are made.”  29 C.F.R. § 825.111(a)(2).  As such, a telecommuting employee that resides in a state that recognizes same sex marriage may be entitled to take leave under the FMLA.

The Department of Labor may revise the FMLA’s regulations to change the definition of “spouse” or to clarify the implications of Windsor.  Until then, employers should review their FMLA and leave policies and procedures to ensure employees with a same sex spouse who reside in a state recognizing same sex marriage receives FMLA leave.

Additionally, certain state and local leave laws may provide greater rights than available under the FMLA.  Employers must be cognizant of their obligations under these leave laws and their interaction with the FMLA.

The FMLA is only one of the many ways that Windsor is affecting the rights of same sex spouses under federal law.